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People v. Avelar

Court of Appeals of Illinois, Fourth District

July 12, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LUIS H. AVELAR, Defendant-Appellant.

         Appeal from Circuit Court of Vermilion County No. 14CM118 Honorable Mark S. Goodwin, Judge Presiding.

          JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Harris and Appleton concurred in the judgment and opinion.

          OPINION

          STEIGMANN, JUSTICE

         ¶ 1 In January 2015, the State charged defendant, Luis H. Avelar, with three counts of violation of an order of protection. The order of protection at issue prohibited defendant from being within 200 feet of his ex-girlfriend, L.H., and their children, E.A., P.A., and O.A. At the March 2015 jury trial, the evidence showed that defendant picked up two of his children from L.H.'s home in Watseka and took them to Hoopeston, where defendant lived. Defendant then called L.H. and told her that he and the children were at the McDonald's in Hoopeston. When L.H. went to McDonald's to pick up the kids, she and defendant argued. Police later arrested defendant for violating the order of protection. The jury found defendant guilty of all three counts of violating the order of protection. The trial court later sentenced defendant to two years' probation.

         ¶ 2 On appeal, defendant argues that two of his convictions for violation of an order of protection must be vacated because they violate the one-act, one-crime doctrine. We disagree and affirm.

         ¶ 3 I. BACKGROUND

         ¶ 4 Because the parties do not dispute the facts of this case, we provide only the fac- tual background necessary to place defendant's claim in context.

         ¶ 5 In August 2013, the trial court entered a plenary order of protection against de- fendant. The petitioner was L.H.-defendant's ex-girlfriend and the mother of three of his children. The petition sought to protect L.H. and L.H.'s daughter-S.M.-along with the children of defendant and L.H.-E.A., P.A., and O.A. The order of protection required, among other things, that defendant stay 200 feet from (1) L.H., (2) S.M., (3) E.A., (4) P.A., and (5) O.A. The order was effective until August 2015.

         ¶ 6 In February 2014, the State filed an information against defendant, which the State amended in January 2015. The amended information charged defendant with three counts of violating an order of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2014)), alleging that defendant "had contact" with L.H., E.A., and P.A., respectively.

         ¶ 7 At the March 2015 jury trial, the evidence showed that on February 16, 2014, de- fendant picked up E.A. and P.A. from their home in Watseka, where they lived with L.H., and took them to Hoopeston, where defendant lived. Defendant later called L.H., told her he was with the children, and asked her to meet him at the McDonald's in Hoopeston so L.H. could take the children back to her home. L.H. met defendant and the children at McDonald's, where an argument began. Police were called, and defendant was arrested for violating the order of protection. During closing argument, the State argued that defendant had violated the order of protection three times, in that "defendant was there at the *** McDonald's *** in Hoopeston. *** [H]e came and got the kids and drove 'em, drove 'em there."

         ¶ 8 The jury found defendant guilty of all three counts of violating an order of protec- tion. The trial court sentenced him to two years' probation. ¶ 9 This appeal followed.

         ¶ 10 II. ANALYSIS

         ¶ 11 Defendant argues that we should vacate two of his convictions for violating an order of protection because they violate the one-act, one-crime doctrine. ...


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